SHYAM SUNDER SINGH Vs. KALURAM AGARWALA

JUDGEMENT

(1.) This is a reference to me as Taxing Judge under Section 5, Court-fees Act, the question being what is the proper court-fee on the memorandum of appeal. In the lower Court court-fee was paid under Section 7(v)(a) of the Act, and that was accepted as correct. The suit having been dismissed, the plaintiff has appealed to this Court, and the Stamp Reporter has expressed the view that the plaintiff should have paid court-fees under Section 7(iv)(c) or alternatively under Section 7 (v)(d). The Taxing Officer is inclined to accept the stamp report, but has referred the matter to me for an authoritative decision.

(2.) The plaintiff is the zemindar of the Pandra estate comprising various villages under various tauzis of the Manbhum Collectorate and also in Burdwan in Bengal. The plaint recites that the Pandra estate, of which the villages in suit form a part, is a Government ghatwali estate and accordingly inalienable and not liable to be sold in execution of a money decree against the zamindar. It goes on to state that the deceased, father of defendant 1, obtained a money decree in 1931 against the plaintiff. Execution started the same year, and after various proceedings, on 27th September 1932, touzim. 23 of the Manbhum Colleotorate was sold and purchased by the other defendants. In all the processes relating to the execution of the decree the property sold was always described as touzi No. 23, and the decree- holder never specified anywhere what villages comprised this touzi and were sought to be sold. The sale was confirmed on 18 November 1935, and on 27th August 1938, defendants 1 party applied for delivery of possession of touzi No. 23. In their application they enumerated and specified the villages, and in doing so included several villages over which title never passed to them under the certificate of sale, though it was clear that nothing that carae under any other touzi had been sold. The Court wrongly granted them possession of the villages falling under touzis 21, 22 and 24 and also of other two villages, Achhra and Dhangari, which had not been purchased. The plaintiff's appeal in the High Court against the order for delivery of possession was dismissed on the ground that, the plaintiff being a judgment-debtor, his objection could not be entertained. Therefore, the plaintiff was obliged to bring the present suit. The plaintiff valued the properties at Rs. 3,00,000 for the purposes of jurisdiction and Rs. 1073-5-4, being 20 times the Government revenue for payment of court-fee under Section 7 (v)(a), Court-fees Act. The properties were in the hands of defendants third party as receivers, and they were accordingly made pro forma defendants.

(3.) Accordingly the plaintiff prayed for the following reliefs: (a) that it be declared that the plaintiff's right, title and interest in the villages enumerated in the schedules had not passed to the defendants 1 and 2nd parties under the certificate of sale, (b) that possession be restored to the plaintiff of those villages over which the defendants 1 party had already taken possession, and (c) that it be declared that the right, title and interest of the plaintiff in the villages under tauzi No. 23 or any other tauzi had not passed to the defendants, and they be permanently retrained from taking delivery of possession or otherwise interfering with the plaintiff's possession over the villages enumerated in Schedule B. There was the usual prayer for costs and any other relief thought proper. An amendment was made later to prayer (b) that the plaintiff be also put into possession over those villages over which defendants 1 party had come into possession during the pendency of the suit from the receivers.